Tekavec v. Van Waters & Rogers, Inc., 5:97 CV 0571.

CourtUnited States District Courts. 6th Circuit. United States District Court of Northern District of Ohio
Writing for the CourtDowd
Citation12 F.Supp.2d 672
Decision Date30 June 1998
Docket NumberNo. 5:97 CV 0571.,5:97 CV 0571.
PartiesGary TEKAVEC, Plaintiff, v. VAN WATERS & ROGERS, INC., et al., Defendants.
12 F.Supp.2d 672
Gary TEKAVEC, Plaintiff,
VAN WATERS & ROGERS, INC., et al., Defendants.
No. 5:97 CV 0571.
United States District Court, N.D. Ohio, Eastern Division.
June 30, 1998.

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Mark L. Wakefield, Gregory S. Scott, Lowe, Eklund & Wakefield, Cleveland, OH, for plaintiff.

Thomas M. Parker, Rweewnxw A. Finn, Roetzel & Andress, Akron, OH, for Van Waters.

Steven K. Kelley, Law Offices of Steven K. Kelley, Independence, OH, for Russell Stanley West.

Orville L. Reed, III, David P. Bertsch, Buckingham, Doolittle & Burroughs, Akron, OH, for Smurfit Plastic Pkg.


DOWD, District Judge.


The plaintiff Gary Tekavec ("Tekavec") alleges that, while working as an employee of Proto Circuit, he was injured when a 55-gallon plastic drum of oxidizing chemicals exploded. In his Amended Complaint (Docket No. 23) he seeks damages against three defendants: Van Waters & Rogers, Russell Stanley West, Inc. ("Russell Stanley"), and Smurfit Plastic Packaging, Inc.

In his first claim for relief, Tekavec alleges that Van Waters & Rogers is a manufacturer, as defined in Ohio Revised Code § 2307.71, which "designed, formulated, produced, created, made, and/or packaged" the 55-gallon drum. Tekavec further alleges that the drum was defectively designed and manufactured. In his fourth claim for relief, Tekavec charges Van Waters & Rogers with negligence in failing to:

A. Package the hydrogen peroxide in conformity with applicable Government standards.

B. Properly inspect, handle, maintain and/or transport the barrel in which it delivered hydrogen peroxide to plaintiff's employer.

Tekavec's second and third claims for relief assert causes of action against the other defendants for the defective design and manufacture of the drum under the Ohio Products Liability Act, R.C. § 2307.71 et seq.

Van Waters & Rogers filed a motion (Docket No. 34) for summary judgment on February 17, 1998. Tekavec filed a brief (Docket No. 39) in opposition and Van Waters & Rogers filed a reply brief (Docket No. 41). Each party then filed supplements (Docket Nos. 44, 46) to their briefs. The motion of Van Waters & Rogers is now at issue.

For the reasons set forth below, the Court GRANTS Van Waters & Rogers' motion (Docket No. 34) for summary judgment with respect to all of Tekavec's claims. The case will proceed only on Tekavec's claims against the remaining defendants, Russell Stanley and Smurfit Plastic Packaging, Inc.

A. Stipulated Facts

The parties filed a fact stipulation (Docket No. 33) on February 17, 1998 which states as follows:

1. The fifty-five (55) gallon drum containing hydrogen peroxide that is the subject of this lawsuit was contaminated while in the exclusive possession, custody, and control of plaintiff's employer, Proto Circuits, Inc.

2. The contaminates referred to in the previous paragraph chemically reacted

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with the hydrogen peroxide in the 55-gallon drum.

3. The chemical reaction caused the pressure inside the drum to increase.

B. Additional Facts

Van Waters & Rogers is a seller of industrial chemicals, including hydrogen peroxide. (Vansil Aff. ¶¶ 4, 7). Van Waters & Rogers receives products from various manufacturers either in bulk or in prepackaged form. Id. They then repackage the products that they receive in bulk in containers of various sizes. (Vansil Aff. ¶ 5).

Hydrogen peroxide is delivered to Van Waters & Rogers in two forms: a solution containing 50% hydrogen peroxide, and a solution containing 35% hydrogen peroxide. (Vansil Aff. ¶ 8). The product is not tested in any way after it arrives at Van Waters & Rogers. (Vansil Dep. at 37). The 50% hydrogen peroxide solution (hereinafter "solution") is received by Van Waters & Rogers from a tanker truck. (Vansil Dep. at 34). The tanker truck brings in approximately 45 gallons of the solution at a time, and the solution is put into a storage tank at Van Waters & Rogers. (Vansil Dep. at 35).

The storage tank has a 7,500 gallon capacity. Id. The tank is above ground and has a valve on the bottom that is used to withdraw the solution when necessary for packaging and shipment to Van Waters & Rogers' customers. (Vansil Dep. at 39-40). The tank also has a secondary valve for safety purposes. (Vansil Dep. at 39).

The company that supplies Van Waters & Rogers with the solution transfers the solution from its tanker truck to Van Waters & Rogers' storage tank.1 The tanker truck is equipped with its own pumps, hoses and lines dedicated specifically to the transfer of hydrogen peroxide. (Vansil Dep. at 38). The solution is "drummed" into the tank by a hose. Id. The solution then remains in the tank until it is drawn out for packaging purposes. Nothing is added to nor extracted from the solution by Van Waters & Rogers' employees during the time that the solution remains in storage. (Vansil Dep. at 53).

When Van Waters & Rogers fills a customer's order, the "repackers" take the solution from storage and place it into drums for transport. (Vansil Dep. at 40). They clean the drums before filling the order and relabel the drums if necessary. Id.

The type of drum used for repackaging depends on the needs of the customer. The customer may request the solution in either a "one-way" drum or an "asset" drum. (Vansil Dep. at 47). The "one-way" drum may transport a solution only once. In contrast, the "asset" drum is a reusable container designed specifically for a certain chemical. Id. at 46. The customer may purchase the product in an asset drum and will receive a partial refund for the return of the drum. Id. The asset drums are then cleaned and returned to the inventory for future use by another customer.

Each of the asset drums used by Van Waters & Rogers has two threaded holes on top that are designed to accept "bungs" which come with the drum. (Vansil Dep. at 24). A "bung" is "the main closure that seals off the threaded portion of the drum." Id. at 24. One of the bungs has a "vent plug" in the center that is put into the bung before the bung is put into the drum. Id. at 23. The bung contains a hole in the center where the "vent plug" is placed. Id. at 25. After the repackers fill the drum, the two "bungs" are then placed in the top of the drum. Id. at 23. The employees of Van Waters & Rogers accomplish all of this assembly before shipment of a product order.

The drum at issue in the instant case was a 55-gallon "Act II" asset drum that Van Waters & Rogers purchased from Russell Stanley. (Vansil Aff. ¶ 16). Van Waters & Rogers received this drum in a shipment of 287 "Act II" drums that were delivered on October 31, 1996. Id. at ¶ 21. The 287 "Act II" drums were entered into Van Waters & Rogers' perpetual inventory record2 for empty

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drums on November 8, 1996. Id. at ¶ 23. Van Waters & Rogers filled twelve of these drums, including the drum Tekavec alleges was defective, with the 50% hydrogen peroxide solution and added them to the hydrogen peroxide inventory on November 14, 1996. (Vansil Aff. ¶ 24). Van Waters & Rogers removed a drum from this inventory on December 31, 1996. Id. at ¶ 26. Van Waters & Rogers shipped this drum, along with a drum of ammonium hydrogen peroxide, to Proto Circuit3 on January 2, 1997. Id. at ¶ 27. This was the last drum of hydrogen peroxide shipped to Proto Circuit before January 16, 1997. Id. at ¶ 28. Tekavec has produced no facts to suggest that this drum had been used before its shipment to Proto Circuit.4

The 50% hydrogen peroxide drum that Proto Circuit received was kept in the Plating Room. (Swank Dep. at 31-32). At approximately 10:00 p.m. on the evening of January 16, 1997, Tekavec was walking through the plating room toward another portion of the Proto Circuit facility. (Tekavec Aff. ¶ 2). He noticed a drum "leaning away" from the wall against which it was placed. Id. Tekavec thought something was wrong with the drum and began to turn away to report it to his superiors. Id. At the same moment, the drum exploded and showered Tekavec with hydrogen peroxide. Id. The hydrogen peroxide burned Tekavec's feet, and he was rendered blind for several days. Id.

Tekavec's expert, Mr. Tamny, inspected the drum. (Tamny Aff. ¶ 1). Mr. Tamny observed that the drum had a 10½ inch vertical tear on the bottom third of the drum. (Tamny report at 1, Plaintiff's Exhibit "E"). Mr. Tamny further observed that the thickness of the drum in the surrounding area was only 0.060 inches, well below the required minimum thickness of 0.087 inches (or 2.2 mm.). Id. at 2. Mr. Tamny concluded that the explosion did not cause this defect, but was present before the incident. Id. Mr. Tamny also concluded that this decrease in thickness would result in a rupture at an internal pressure of approximately 17 pounds per square inch ("psi"), which is well below the normal 35 to 40 psi. Id.5

The "Act II" drum is the only asset drum that Van Waters & Rogers uses for transporting hydrogen peroxide solutions. (Vansil Dep. at 51). Van Waters & Rogers has ordered between 3,000 and 4,000 of these "Act II" drums from Russell Stanley during the last five years. (Vansil Aff. ¶ 31). Van Waters & Rogers has stated that it is unaware of any defects existing in the "Act II" drums that it has purchased from Russell Stanley. Id. at 32. Further, Van Waters & Rogers notes that Russell Stanley stamped

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the drum wall thickness on the surface of the drums. (See id. ¶ 19 and Attachment 2).


Summary judgment is appropriate where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56. When considering a motion for summary judgment, "the inferences to be drawn from the underlying facts contained in [affidavits, pleadings, depositions, answers to interrogatories, and admissions] must be viewed in the light most favorable to the party opposing the motion." U.S. v....

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